Disputing a federal law that requires "exporters" of encryption to be
licensed, attorneys for Cleveland law professor Peter
Junger argued in court today that he has a constitutional right to
teach foreign and local students about the data security technology by
posting material on his Web site.

The U.S. District Court of Eastern Ohio today heard oral
arguments for an hour and a half in Junger's case against the Commerce Department, which enforces the
federal export restrictions on strong encryption. The technology scrambles
digital communication, making it impossible to understand unless the
recipient has a personal key to unlock the data.

Attorney Ray Vasvari on crypto as protected speech

Encryption is considered a potential weapon under federal law;
subsequently, a license is required to export strong encryption products.

But Junger is a professor at Case
Western Reserve University, and not an
arms dealer, his attorneys contended. Pointing to a federal ruling in San
Francisco last year, Junger's counsel held that software code is a form of
speech and therefore is protected by the First Amendment.

"We're looking for an invalidation of the regulations that prohibit our
client, Professor Junger, from posting his particular Web page, which contains
content that the government is calling encryption software," Raymond
Vasvari, cocounsel to Junger, said today.

"He is capable of distributing three lines of encryption code in a
hard copy of his course book," Vasvari added, "[but] he's not capable without a
license from the Commerce Department to distribute it on the Web. If he
were to do it without a license he could face severe civil penalties."

Overall, the professor has filed three applications with Commerce asking
for clarification on his ability to post 13 items, including a chapter of
his course book, copies of
the internationally available product Pretty
Good Privacy, or three lines of the RSA
algorithm, for example.

Junger first challenged the law in 1996, when he was told that an export
license would be necessary to post his "Computers and the Law" class online,
which would link to certain encryption products. A string of legal hoops
and changes in jurisdiction over the case led him to refile the case last
fall. After the oral arguments today, attorneys expect a decision within a
few months, which no doubt will be appealed.

The government argued today that encryption is not a form of speech. An
attorney for the Justice Department said
all the government is trying to do is regulate the function of the
software.

Law enforcement officials contend that if encryption falls into the wrong
hands it can be used by high-tech criminals to cover their tracks. But
those who want the export limits overturned counter that encryption
already is widely available around the world, where it can be shipped
without a license.

Junger is fighting the law because he says it stifles his academic freedom.

"If the government can restrict the writing and publication of encryption
programs because they are useful--and that is basically what the government
is claiming--without regard to the authors' and publishers' constitutional
rights under the First Amendment, then, by the same reasoning, it could
forbid the publication of any computer program that earns the disfavor of
the authorities," Junger said in a statement today.

In a similar case filed by University of
Illinois math professor Daniel Bernstein, a federal judge in San
Francisco ruled in favor of the educator, stating that authors of any
software are protected by the First Amendment and should not be stifled by
the encryption export regulations.

In August, U.S. District Judge Marilyn Hall Patel issued the landmark
decision calling software a "language." She issued an injunction allowing
Bernstein to post online the code of an encryption program he wrote.
But the injunction hasn't gone into effect because the Justice Department appealed the ruling.

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